Hall v. Hall, 47 A. 79

Hall v. Hall

47 A. 79 | N.H. | 1899

The deed to Deborah Felker, being accompanied by a secret trust, was voidable as to the grantor's creditors (Stratton v. Putney, 63 N.H. 577); but as between the parties it was a valid contract. Esty v. Long,41 N.H. 103. The parties intended that the deed and bond should operate only as security. While no other inference can be drawn from their acts, yet the transaction cannot be treated as a mortgage because of the prohibition of the statute. P.S., c. 139, ss. 1, 2; Tifft v. Walker,10 N.H. 150; Gordon v. Gordon, 54 N.H. 152. Hall had a right to a conveyance upon the performance of certain conditions. This right having been created simultaneously with the grant, the grantee acquired no such seizin as would support a dower right as against Hall. Hunkins v. Hunkins,65 N.H. 95, 99; Hallett v. Parker, 69 N.H. 134. On the other hand, Hall had not sufficient interest to support such a title in his widow. Conceding that it is the law that the holder of an equitable title has sufficient seizin to support a claim of dower (compare 1 Per. Tr, s. 324, 1 Wn. R.P. 202 et seq., 4 Kent 45, with Hopkinson v. Dumas, 42 N.H. 296, 306), it cannot avail this plaintiff. The equitable title required for this purpose is a present right to enforce in a court of equity a demand either for a legal title or for the beneficial use of the property. Pugh v. Bell, 2 T.B. Mon. 125, — 15 Am. Dec. 142; 1 Per. Tr., s. 324. This is more than Hall possessed. He had only a right to *Page 48 obtain title upon performing the condition of the bond. He owned an executory contract, but neither a legal nor equitable title to the real estate. If the condition had not been performed, Deborah's title would have been complete without foreclosure or further conveyance. The bond was personal property; and the fact that the administrator converted it into real estate, instead of selling it, does not change the nature of the estate in his hands. Vandewalker v. Rollins, 63 N.H. 460, 464.

Appeal dismissed.

All concurred.